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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Rai, R v [2018] EWCA Crim 618 (1 March 2018) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2018/618.html Cite as: [2018] EWCA Crim 618

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 1 March 2018

1. LORD JUSTICE HOLROYDE: On 10 September 2013 in the Crown Court at Southwark, this applicant was convicted of four offences of making indecent photographs of a child contrary to section 1(1)(a) of the Protection of Children Act 1978. On 7 October 2013 he was sentenced to six months' imprisonment concurrent on each count and was made subject to a Sexual Offences Prevention Order for five years.
2. The applicant had been advised by his trial counsel that there were no grounds of appeal against his convictions. He nonetheless did lodge an application for leave to appeal against conviction based on grounds of his own composition. Those grounds were firstly, that his Article 6 rights under the European Convention had been infringed by the imposition upon him of a reverse burden of proof, and secondly that his defence counsel had failed sufficiently to challenge certain prosecution evidence about the seizing, or the failure to seize, particular notebooks and documents. The application for leave was refused by the single judge on 18 December 2013. It was not renewed.
3. The applicant now applies for an extension of time of approximately three years and four months in which to renew his application for leave to appeal against conviction. He also applies for leave to amend his grounds of appeal, in effect by abandoning those previously advanced and relying on different grounds, and for leave to adduce fresh evidence pursuant to section 23 of the Criminal Appeals Act 1968. These several applications are made with the assistance of recently instructed solicitors and counsel.
4. We have been assisted today by the submissions of Mr Daw QC and we are grateful to him for his preparation of a convenient bundle of the relevant documents.
5. We must summarise briefly the circumstances of the offending. The applicant was at the material time a serving police sergeant. In addition to his police duties, he also had, with authorisation from his superiors, an external business interest in the field of law enforcement training.
6. On 2 February 2012, the applicant's home was searched by the police in relation to an investigation which did not result in any charges. However, amongst computers and storage devices seized during that search, a number of indecent images of children were recovered.
7. On 20 June 2012, his home was searched for a second time, and further digital storage devices and documents were seized. The applicant on that date was arrested on suspicion of offences relating to indecent images of children. In interview later that day, he put forward a prepared statement in which he said that he had conducted research into child exploitation and human trafficking. He also said that he had not intentionally downloaded any indecent images of children. In further interviews, he for the most part made no comment.
8. In mid-2012, the prosecution obtained a report from a Mr Thomas, whom we understand to have been a police employee with experience and expertise in the examination of electronic devices and the recovery of data stored on them. He said that analysis of the various computers and storage devices seized from the applicant's home revealed a total of 505 indecent images of children. In terms of the categorisation of such offences which was then current, and which involved a scale of levels 1 to 5, Mr Thomas's analysis was that there were 129 images at level 1, 35 at level 2, 70 at level 3 and 271 at level 4. In addition, Mr Thomas said the analysis showed a large number of file names, the titles of which suggested indecent content, but in relation to which no content was recoverable. He had also found evidence that files had been cleansed from storage devices.
9. The applicant was further interviewed on 6 August 2012. On this occasion he submitted a further prepared statement and a quantity of supporting documentation, in which he asserted that he had a longstanding interest in law enforcement training, including on the topics of human trafficking and exploitation. He said he had opened some files to examine materials in that regard, but he did not explicitly admit any intentional downloading of any indecent images of children.
10. In a final interview on 1 November 2012, the applicant referred to various notes and documents which the police had seized from his home in the course of their two searches. His evidence at trial was that subsequent to that interview, in about December 2012, he had found in his attic further notebooks, on which he relied at trial. It is convenient to refer to these by way of shorthand as "the red and black notebooks". His evidence was to the effect that the police must have missed the red and black notebooks when conducting their searches, and that he himself had not realised they were still in his attic until he chanced to go up there looking for something else.
11. On 2 January 2013, the applicant was charged with four offences. Those charges came to be embodied in a four-count indictment. In essence, each charge and each count reflected one of the four categories of indecent image which Mr Thomas said he had found. Having been charged, the applicant was subsequently committed for trial. He made in all six pre-trial appearances before the Crown Court, leading to his fixed trial date of 2 September 2013.
12. In late July 2013, less than six weeks before the trial date, the applicant changed his solicitors. All we know about the circumstances of that change was that his previous representatives withdrew because of professional embarrassment. The solicitors newly appointed instructed on 31 July 2013 a computer expert, Ms Raincock. They instructed her to examine the computers and devices which were the subject of Mr Thomas's report. Ms Raincock, having taken on that work, was later to indicate that the volume of work involved proved to be such that she could not fully complete it in accordance with her usual working practices before the trial date.
13. On 4 August 2013, the applicant served his defence statement in which, amongst other things, he referred to notes of his research which the police had not seized in either of their searches.
14. On Tuesday, 27 August 2013, just under a week before the trial was due to begin on the following Monday, application was made to a judge at the Crown Court to vacate the trial date. That application was refused. It appears that until that stage of proceedings, the solicitors then acting for the applicant had intended that he be represented in court by an in-house advocate. Following the refusal of the application to vacate the trial date, independent counsel, Mr Forward, was instructed. The precise date on which he received his instructions has not been identified, but it was certainly no later than Friday, 30 August 2013, because on that date Mr Forward spent some time in conference with the applicant. The applicant brought with him to the conference what appears to have been a very substantial quantity of paperwork, including, it seems, the red and black notebooks.
15. On Sunday, 1 September 2013, Ms Raincock signed off her report. That of course was the day before the trial was due to begin.
16. The trial did begin as scheduled on Monday, 2 September. The application to vacate was not renewed to the trial judge. As a result of Ms Raincock's work, and her correspondence with Mr Thomas, the number of indecent images alleged by the prosecution was very substantially reduced. Ms Raincock had challenged Mr Thomas's work, saying that he had substantially over-counted the number of indecent images, and having been provided with her report, Mr Thomas agreed that he had been "overzealous" in his work. He seems to have accepted Ms Raincock's views very readily. In the result, the prosecution opened the case to the jury on the basis that there was a total of 226 indecent images of children found on the various seized devices. By way of breakdown, they were 39 at level 1, 25 at level 2, 35 at level 3, and 127 at level 4.
17. As a result of the discussions between Mr Thomas and Ms Raincock, their evidence as to matters relating to computer analysis was agreed, and Ms Raincock was not called to give oral evidence. The number of images and the categorisation of them was also agreed, and was presented to the jury as an agreed fact. The applicant, in the course of the trial, accepted that he had made some images by downloading images onto his computers.
18. The trial, as we have said, proceeded on the basis that the total number of images thus downloaded was agreed to have been 226. The summing-up makes it clear at page 6 what was and what was not in issue at trial. The learned judge, Her Honour Judge Taylor, summarised the matter in this way:

"In relation to these offences, the prosecution must make you sure of the following three things: firstly, between 1 September 2006 and 16 January 2012, the defendant made photographs; secondly, those photographs were of children; and thirdly, the photographs were indecent. In this case there is no dispute about any of those elements of the offence. It is admitted that the defendant downloaded a number of the images set out in the schedule in exhibit 1 reflected in each of the counts on the indictment, and that there were indecent images of children at the levels on the scale on that schedule. As a matter of law, downloading images onto a computer falls within the definition of 'making those images'. It is not simply taking photographs. If you download an image, you make it as a matter of law. You will have no difficulty in finding the prosecution has proved the three elements, and you can be sure of it because it is not disputed. You then move on to the second part, what the defendant must prove and to what standard. That relates to the defendant's defence and is the main issue in relation to these counts."

19. That was a reference by the learned judge to the applicant's reliance on the statutory defence provided by section 1B of the Protection of Children Act 1978. That section, headed "Exception for criminal proceedings, investigations et cetera," is, so far as material for present purposes, in the following terms:

"1. In proceedings for an offence under section 1(1)(a) of making an indecent photograph or pseudo-photograph of a child, the defendant is not guilty of the offence if he proves that-

(a) it was necessary for him to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world ... "

That was the defence relied upon by the applicant, his case in very broad terms being that any downloading of images had been in the course of his research and preparation for his training work. The applicant relied in this regard on the red and black notebooks which he said he had found in his attic in December 2012. Those notebooks were ultimately made exhibits in the case and the jury had them during their retirement. It is said, however, on the applicant's behalf that no reference was made to their contents in the course of evidence or in counsel's submissions to the jury.

20. The prosecution, for their part, contended that the applicant had not downloaded indecent images for the purposes of research, but rather because he had an unhealthy sexual interest in children. The prosecution did not accept that the red and black notebooks were genuine contemporary records of the research which the applicant said he had carried out over a period of about six years. The prosecution relied upon the fact that as a serving police officer, the applicant was familiar with police guidance on the handling of material which comprises or includes indecent images of children. That guidance is given in a Memorandum of Understanding between the CPS and the police. It requires that the creation of such images is part of a clearly defined role or duty, that the images were stored in a secure location, that the person concerned should report or inform the relevant authorities about what he or she was doing, that the number of images is proportionate to the activity pursued, and that the individual concerned should behave reasonably.
21. As we have said, the applicant was convicted and sentenced. Following his conviction, he sought leave to appeal on the grounds we have identified, and his application was refused in December 2013. Many months then passed. It was not until late 2015 that the applicant instructed the lawyers who now act on his behalf. Further time then passed whilst they obtained the necessary papers for the case, obtained transcripts, and arranged to instruct a further expert witness.
22. The grounds of appeal which Mr Daw now advances, orally and in writing, are, as we have said, entirely different from those which have gone before. They are encapsulated in this way in the advice on appeal:

"The conviction is unsafe due to the misleading and grossly inaccurate nature of the expert evidence presented to the jury at trial, exacerbated by a lack of preparation by defence counsel."

Reliance is placed on a report obtained from Mr Shepherd, a consultant in cyber investigations and digital forensic matters, which it is sought to admit as fresh evidence.

23. Mr Daw submits that the evidence put before the jury at trial was wholly unsatisfactory. It was wholly unsatisfactory that Mr Thomas should prepare a report stating the number of indecent images to be in excess of 500, on the basis of which the prosecution was commenced, only for Mr Thomas to abandon that position as soon as confronted with Ms Raincock's work and to reduce the number of images very substantially. Mr Daw submits it was also wholly unsatisfactory that as a result of the agreement having been reached between Ms Raincock and Mr Thomas, Ms Raincock was not called as a witness. He further submits that Mr Forward cannot have been fully prepared, having had the brief for only a very short time before the trial began, and he submits that the applicant was not properly consulted about the decision to agree facts as between prosecution and defence about the number and categorisation of the images found upon examination of the various devices. The whole case, contends Mr Daw, was conducted on a mistaken assumption that the agreed numbers and categories of images were reliable when in fact they were not. That predominant feature of the trial, submits Mr Daw, is an illustration of how the preparation was rushed and inadequate.
24. As support for his submissions, Mr Daw points to the conclusion reached by Mr Shepherd in his very recent report. It is summarised in this way at page 7 of the report:

"(a) There has been much over-grading and inclusion of duplicated indecent images of children resulting in far more picture and video files being identified for charging than was actually present by Mr Thomas.

(b) The defence expert Ms Raincock was instructed to review the police digital evidence and stated that she did not have enough time to conduct a thorough review and examination of police evidence. She detailed her evidence may contain errors as a direct result."

That conclusion has been reached by Mr Shepherd in large part because he says, in relation to many of the images which he has analysed, that he does not feel able categorically to say, in the absence of other supporting evidence, that the person depicted in particular images is a child under the age of 18. His overall conclusion, upon which Mr Daw understandably relies, is that on all of the devices analysed, only 25 images can be found which properly meet the evidential standard for prosecution in relation to indecent images of children. Mr Daw submits that this is evidence which would undoubtedly have been admissible at trial and to which this court should give very considerable weight.

25. The prosecution, in the light of Mr Shepherd's report, have also consulted a further expert, namely Mr Fellows, an expert in forensic computing and network investigations. In broad terms, he agrees with Mr Shepherd's conclusions, although he finds the correct number of indecent images to be rather more: 32 rather than 25.
26. Mr Daw goes on to submit that trial counsel failed to make appropriate use at trial of the important red and black notebooks, with the result that the support which those notebooks were capable of providing for the applicant's own evidence was not sufficiently made clear to the jury. Here again, suggests Mr Daw, is an indication of rushed and inadequate preparation.
27. We should note that Mr Forward has been asked to comment on a number of the points raised. He rejects the criticisms made of his professional conduct.
28. Mr Daw in summary submits that in two related ways, these convictions are unsafe. First, the jury, wrongly thinking that there were as many as 226 indecent images of children, may well have taken a less favourable view of the defence case than they would have done if they had known that the correct number of indecent images was of the order of 25 to 32. Secondly, the failure of trial counsel to place appropriate emphasis on the contents of the notebooks may have contributed to the jury's decision in rejecting the applicant's evidence and finding that he had not made out the statutory defence.
29. The prosecution, in a written Respondent's Notice, accept that evidence now available points to an error in quantifying the number of indecent images at trial. They submit, however, that this does not affect the safety of the convictions. Whatever the number of images, submits prosecution counsel, the applicant was unable to show, even on the balance of probabilities, that it was necessary for him to download any images, and so he could not bring himself within section 1B(1)(a) of the Act. In support of their submissions, the prosecution point inter alia to the failure of the applicant to refer to his supposed research at all when first interviewed; to the suspiciously late production of the red and black notebooks; and to the applicant's knowledge of the Memorandum of Understanding, coupled with his failure at any time over a period, which he put at six years, to tell any of his superiors about his research.
30. The application is, as we have indicated, made long out of time. The Respondent's Notice cites Johnson [2016] EWCA Crim 1613 [2017] 1 Cr App R 12, in which this court said that exceptional leave to appeal out of time will only be granted where the applicant can show that a refusal would result in substantial injustice. That was a change of law case; but it is always necessary to show good reason for the granting of a long extension of time. In applying that test, we take into account that this is an application made in circumstances where new grounds of appeal are being put forward in substitution for the different grounds initially and unsuccessfully advanced.
31. Under section 23 of the Criminal Appeals Act 1968, one of the matters to be considered is whether the proposed fresh evidence would provide a ground for allowing the appeal. Thus in the circumstances of this case, the issues of extension of time, leave to appeal and leave to adduce fresh evidence are intertwined, as is the application for leave to amend the grounds of appeal. It is therefore convenient for us to begin by considering the overall merits of an appeal, taking into account the reports of Mr Shepherd and Mr Fellows, which we have considered de bene esse.
32. We begin by emphasising that the first issue for the jury to decide was whether the prosecution had proved that the applicant had made the indecent images of children. If there was an issue as to whether he had done so, that was a matter for the jury. If there was an issue as to whether an image which he had downloaded was indecent, that was a matter for the jury. If there was an issue as to whether an image which he downloaded was an image of a child, that was a matter for the jury. This court has made it plain that the age of a person shown in an indecent image is not a matter for expert evidence: see Land [1998] 1 Cr App R 301 and Hill [2003] EWCA Crim 42.
33. In the present case, no such matters were disputed, and the jury were so directed. We nonetheless emphasise these points because so much attention has been paid, both at trial and now, to what was put forward as expert evidence as to the ages of persons shown in the images, and as to whether particular images were indecent. In the event, at trial, these were matters covered by the agreed facts, and no expert evidence was adduced with a view to trying to prove that a particular image was indecent and/or was an image of a child. But importantly for present purposes, those are matters upon which neither Mr Shepherd nor Mr Fellows would be able to give expert evidence at trial. Such evidence would not be admissible. This is no criticism, of course, of their expertise in computer related matters, but opinion evidence as to the age of the person depicted would not be admissible from them.
34. Mr Daw, when addressing us about this aspect of the case, readily acknowledged the legal position, but submitted that in practice a different approach is adopted. We accept of course that at the commencement of proceedings, the prosecution will be relying upon an analysis by someone experienced and skilled in the work of image recovery from one or more devices, and will be guided by that analysis as to the number and characterisation of the relevant images. Every effort is of course made to minimise the number of persons who are required to view images in question. If, for example, a particular image is found which has already been the subject of evidence in a different trial, that is a matter which can be dealt with on the basis of the previous findings.
35. But we emphasise that everything depends on what is in issue in the case. To take, by way of illustration, the matter now raised in the present case as to the number of indecent images. If the prosecution contend that hundreds of indecent images have been found, and a defendant denies that that is so, and either denies that there were any indecent images downloaded onto the relevant device, or says there were at most only a handful, then clearly there is an issue which will have to be resolved by the jury hearing evidence. If the answer lies, or might lie, in someone having wrongly formed a view about whether a person depicted is an adult or a child, that is an issue which needs to be resolved, if necessary by the jury considering the relevant material. The important point is that everything depends on what is in issue. In this case, the elements of the offence which the prosecution had to prove were not in issue. They were the subject of agreed facts.
36. Mr Daw submits to us that although they were presented as agreed facts, the evidence of the applicant at trial showed that he himself had not really had any proper opportunity to understand, or positively to assent to, the making of such agreement. In our view, it is far too late to be raising a matter of that nature at this stage. No doubt there are difficulties in practice for a person in the applicant's position, accused of downloading imagery and told that expert evidence points to a particular number of images having been found; but it may be expected that a person so accused will have at least a general idea of whether any indecent imagery could be found on his computer, and if so, at least a rough idea of how many indecent images might be found. The applicant says he had conducted his research over many years. He must surely have been able to form at least a rough view of how many times he had or may have downloaded an indecent image of a child. If he was grossly dissatisfied with the agreement which his lawyers were purporting to make as to the number of images, it was open to him to say so. He did not say so. Nor did he say so, importantly, when he drafted his own grounds of appeal. He criticised counsel in another respect, but he did not suggest at that stage that he had been opposed to any agreement as to the number of images.
37. Mr Daw understandably makes the point that the jury would be likely to be influenced in their assessment of the case by the number of images. To paraphrase Mr Daw's argument, the statutory defence may be the more convincing when a small number of images is involved, but less convincing when a large number is involved. In that sense, says Mr Daw, the respondent's notice is in error when it suggests that numbers of images did not matter. We would put it in this way: the precise number of images did not matter, because the defendant was not himself asserting that the number put forward at trial was seriously inaccurate.
38. We take into account that the applicant was a serving police officer. We find it, frankly, difficult to accept that he was somehow railroaded into accepting as agreed facts something with which he seriously disagreed. It seems to us that he must have been at the time content for the case to proceed on the basis upon which it did proceed.
39. As to the red and black notebooks, we again see no merit in the points made. We again draw attention to the ability of the applicant to give instructions to those representing him. The red and black notebooks are now said to be a vital part of his defence. If that be so, we find it difficult to understand why they were not identified as vital to his defence at a much earlier stage by the applicant. We remind ourselves of the summary chronology. The applicant was arrested and interviewed on 20 June 2012. His trial began well over a year later, on 2 September 2013. By that time, on his evidence, it was about nine months since he had come across the red and black notebooks in his attic, and he was in a better position than anyone else to know their significance. True it is that there had been a change of legal representation, but it is not suggested to us on the applicant's behalf that he had done his best to impress the importance of the notebooks upon the previous representatives, who had in some way let him down in this regard.
40. We bear in mind also that there was a serious issue at trial as to whether the red and black notebooks were truly contemporaneous records which had somehow been missed by the police in two searches, or were, as the prosecution suggested, a late construction.
41. We agree with Mr Daw that there were undoubtedly some unsatisfactory features of this trial. We agree with him that it is unsatisfactory that a person providing a report for the purposes of the prosecution should be "overzealous" in the way in which Mr Thomas appears to have accepted he was on this occasion; but the features of Mr Thomas's evidence upon which attention is now focused are features which would never have been admissible as expert evidence in any event. Equally, we agree with Mr Daw that it is unsatisfactory that trial counsel was not briefed until days before the trial began, but it seems to us that the issues in the case were assimilated by him, and we are not persuaded that there is any valid criticism of his conduct of the trial. The simple fact of the matter is that the applicant was able to put forward his explanation for what he had downloaded, and the jury did not accept his account.
42. In those circumstances, we conclude that Mr Shepherd's evidence is not capable of affording any ground of appeal.
43. We come finally to what is in truth the first hurdle which the applicant has to surmount, namely whether the long extension of time should be granted. It will be apparent from what we have already said that we are not persuaded that any injustice would be caused if we refuse that extension. In our view, the explanation put forward for the long delay is incomplete and unsatisfactory. Of course we can accept that after his release from prison the applicant was unemployed and for a time without funds; but he showed himself capable of drafting grounds of appeal, and if he had believed at that stage that the trial had proceeded on a false premise as to the number of images which he had downloaded, it is surprising that he did not say so. Moreover, the material put before us indicates that with the assistance of his family, the applicant was in a financially better position by about the end of 2015. A long period then passed before the present grounds of appeal were lodged. It is not satisfactory simply to say that there was a lot of work to be done to reach the stage of lodging those grounds. If we had taken a different view of the merits, we would have allowed an opportunity for further explanation in this regard, but for the reasons which we have indicated, we see no merit in the grounds of appeal.
44. For those reasons, each of the various applications is refused.

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